Freedom of Speech and Expression

Constitutional Status of the Media

 Ramlila Maidan Incident,re

The freedom of speech and expression is regarded as the first condition of liberty. It occupies
a preferred position the hierarchy of liberties, giving succour and protection to all other
liberties. It has been truly said that it is the mother of all other liberties, freedom of speech
plays a crucial role in the formation of public opinion on social, political and economic
matters. It has been described as basic human right.

With the development of law in India the right to freedom of speech and expression has taken
within its ambit the right to receive information as well as the right of press.

U.S.A. – Amendment I

• Liberty of the press

• The USA constitution, which says "congress shall make no law ... abridging the free”

• Douglas J. in Terminiello v. Chicago, 337 U.S. 1.

• Mills v. Alabana, 384 U.S. 214

• Art. 19 UDHR - Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.

Constituent Assembly debate

• Damodar Swarup Seth moved art. 13 with changes

• Subject to public order or morality the citizens are guaranteed–

(a) freedom of speech and expression;

(b) freedom of the press;

(c) freedom to form association or unions;

(d) freedom to assemble peaceably and without arms;

(e) secrecy of postal, telegraphic and telephonic communications

The present is the age of the press and the press is getting more and more powerful today. It
seems desirable and proper, therefore, that the freedom of the press should be mentioned
separately and explicitly.:

K.T. Shah : subject to the other provisions of this article, all citizens shall have the right-- (a)
to freedom of speech and expression; of thought and worship; of press and publication

The freedom of the press, as is very well known, is one of the items round which the greatest,
the bitterest of constitutional struggles have been waged in all constitutions and in all
countries where liberal constitutions prevail. They have been attained at considerable
sacrifice and suffering. They have now been achieved and enshrined in those countries.
Where there is no written constitution, they are in the well established conventions or judicial
decisions. In those which have written constitutions, they have been expressly included as the
freedom of the press.

Dr. B.R. Ambedkar : The press is merely another way of stating an individual or a citizen.

The press has no special rights which are not to be given or which are not to be given or
which are not to be exercised by the citizen in his individual capacity.

The editors of press or the manager are all citizens and therefore when they choose to write in
news paper they are merely exercising their right of freedom of speech and expression and in
my judgment therefore no special mention is necessary of the freedom of press at all.

Preamble: resolves to secure for the citizens of India, liberty of thought, expression and
belief

Article 19(1)(a) : All citizens shall have the right- to freedom of speech and expression

Art. 19(2) : Reasonable restriction

M.S.M. Sharma v. Sri Krishna Sinha (Searchlight case) : AIR 1959 SC 395 – A non-
citizen running a newspaper is not entitled to the FR to freedom of speech and expression.
The liberty of press in India stands on no higher footing than the freedom of speech and
expression.

Romesh Thappar v. State v. Madras – AIR 1950 SC 124

The Madras Government imposed a ban upon the entry and circulation of the journal called ―The
Cross-Roads‖ within the state of Madras. The order was challenged and the Supreme Court held that
the Madras Maintenance of Public Order Act, 1959, which authorizes the imposition of restrictions,
was void and constitutional. The Supreme Court observed that the criticism of the Government of
exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for
restricting the freedom of expression and of the press unless it is such as to undermine the security
of the State or tend to overthrow the State. Unless a law restricting freedom of speech and
expression is directed solely against the undermining of security of the State or the overthrow of it,
such law cannot fall within the reservations under Article 19(2). Supreme Court said. …There can be
no doubt that freedom of speech and expression includes freedom or propagation of ideas, and that
freedom is ensured by the freedom of circulation; Liberty of circulation is as essential to that
freedom as the liberty of publication. Indeed, without circulation, the publication would be of little
value.

The supreme court struck down section 9 (1) (A) of the madras maintenance of Public order
act of1949

Brij Bhushan v. State of Delhi, A.I.R. 1950 S.C. 129

This case and the Cross-Roads case were disposed off by the common judgment. In this case the East
Punjab Safety Act 1940 authorized the Government to take action necessary for the purpose of
preventing any activities prejudicial to the public safety or the maintenance of public order. This was
challenged as unconstitutional. Supreme Court agreed with the contention and held that the
relevant provisions of 1940 Act as unconstitutional because the grounds of public safety and
maintenance of public order were not available under Article 19(2). Following the decision of the
Supreme Court in Romesh Thapper (Cross-Roads) and Brij Bhushan (Organiser) cases, many High
Courts in our country pronounced decisions to the effect that even incitement to individual murder
or promoting disaffection amongst classes could not be restricted under the permissive limits set in
Article 19(2). The interpretation given by the Supreme Court in these two cases just after the coming
into being of the Constitution was misunderstood and misapplied which the Supreme Court noted
with regrets in State of Bihar v. Shailbala referred below.

The supreme court declared unconstitutional an order issued under section 7(1)(c)of the East
Punjab safety act of 1950 which directed the editor and publisher of the newspaper organiser
to submit for scrutiny, in duplicate and before publication, all communal matters and news
and views about Pakistan, including photographs and cartoons.

In State of Bihar v. Shailabala, 1952 SCR 654 - a pamphlet entitled ' Sangram ' (revolution)
was printed at the respondent's press and allegedly circulated in a Bihar town. The leaflet,
written in Bengali, contained a clear invocation to the reader to join an all- out, deadly
struggle to bring about a violent revolution that was to result in complete annihilation of,
those whom the writer considered oppressors, perpetrators of wrongs and injustices; (ii)
participants in parochial national politics; and (iii) persons who disgraced the motherland.
The government of the State of Bihar determined that the pamphlet contained objectionable
matter, under section 4(1)(a) of the Indian Press (emergency powers) act of 1931and ordered
the press to furnish security of Rs. 2,000, as authorized by section 3(3) of Act. – Patna HC 13
Oct 1950

Supreme Court held that the pamphlet did not come within the mischief of Section 4 as it merely
contained empty slogans carrying no particular meaning except some amount of figurative
expressions or language borrowed at random various authors. The Supreme Court also observed
that in order to determine whether a particular document was within the ambit of Section 4(1) the
writing has to be considered as a whole in a fair, free and liberal spirit, not dwelling too much on
isolated passages or upon a strong word here and there and an endeavour should be made to gather
the general effect which the whole composition would have on the minds of the people.

The alarming situation arising out of the judgments of the Supreme Court in Organizer and cross
Roads necessitated the Government to come forward with an amendment of Article 19(2) so as to
restrict liberal interoperation given by the supreme Court. Additional grounds of (a) friendly
relations with foreign States, (b) public orders and (c) incitement to an offence were added by the
First Amendment to the Constitution.

Article 19(2) only allowed the government to impose limits on free speech if the speech in
question was likely to have a tendency to “overthrow” the state.

“Public order” (a term which Ambedkar had tried to bring into the constitution, from
Motilal Nehru’s report and the Irish constitution) was not an enumerated exception to the
right to free speech.

The above noted decisions acknowledging freedom of the press did not find favor with the
government

Amendment provided for three additional grounds that would permit the imposition of
legislative restrictions, namely, (1) friendly relations with foreign states; (2) public order; and
(3) incitement of an offence.
 Article 19(2) was further amended via the constitution (sixteenth amendment) act of 1963-
the sovereignty and integrity of India.

Facets of Speech and Expression under Art. 19(1)(a)

Right to circulate :

Freedom of the press is both qualitative and quantitative. Freedom lies both in content and in
circulation. When newsprint, the white paper on which the newspaper is printed, is a scarce
commodity, the state assumed the responsibility of equitable distribution of the newsprint among
the newspapers, which is permissible. But in the name of such permitted equitable distribution, any
control of the growth and circulation of newspapers would be denial of the freedom of the press.
The press has the right to free propagation and free circulation without any previous restraint. If a
law were to single out the press for laying down prohibitive burdens on it that would restrict the
circulation, penalise its freedom of choice as to personnel, prevent newspapers from being started
and compel the press to seek Government aid, there would be a violation of the right conferred by
Article 19 (1)(a).

o Sakal Papers(P) Ltd. V. U.O.I., AIR 1962 SC 305

The Newspapers (Price and Page) Act 1955 empowered central Government to regulate the prices of
newspapers in relation to their pages and sizes and to regulate the allocation of space for
advertisement matter. Under this Act, the Central Government issued The Daily Newspaper (Price
and Page) Order, 1960 and fixed the minimum number of pages that could be issued by the
newspaper. This was alleged to be contravening the Article 19(1)(a) of the Constitution. The
contention was accepted and both the Act of 1955 and the Order of 1960 made under it were held
void for being violative of Constitutionally assured Fundamental Right which was not saved by Article
19(2). In order to propagate his ideas, a citizen has the right to publish the same, disseminate them,
and circulate them by word of mouth or writing or printing. The right not only extended to the
matter and its circulation but also to internal control and freedom over the allocation of space for
the matter. To quote The Supreme Court: The Newspaper Act was intended to affect the circulation
and thus directly affect the freedom of speech. The Act seeks to achieve its object of enabling what
are termed the smaller newspapers to secure larger circulation by provisions, which without disguise
are aimed at restricting the circulation of what are termed as larger papers with better financial
strength. The impugned law far from being one, which merely interferes with the right of freedom of
speech incidentally, does so directly though it seeks to achieve the end by purporting to regulate the
business aspect of a newspaper. Such a course is not permissible and the Court must be ever vigilant
 in guarding perhaps the most pernicious of all the freedoms guaranteed by our Constitution, The
freedom of speech and expression is of paramount importance under a democratic Constitution
which envisages changes in the composition of legislature and Government and must be preserved.
The restrictions were sought to be justified by the Union Government on the ground that since
newsprint was in short supply and to be imported, it was necessary to restrict and regulate its
distribution and use. The Court pointed out that shortage of newsprint could stop with allotment. If
the Government rests content with a fair and equitable allotment of the available newsprint to the
consumers, none can quarrel with the policy. Once the allotments are made, newspapers must be
left free to determine how they will adjust their newsprint; to determine their pages, their
circulation and their new editions within the quota allotted to them. But what the government has
done under the garb of distribution of newsprint is the control of the growth and circulation of
newspapers so that Newsprint Control has been subverted to Newspaper Control. Freedom lies both
in circulation and content. The impugned Newsprint Policy denies newspapers their right of
circulation. Even by reducing circulation they are not allowed to increase the number of pages, page
area or periodicity. The restrictions are not reasonable restrictions under Article 19(2). 77 The Court
also held that the newsprint policy violates Article 14 because it treats newspapers, which are not
equal as equals in assessing the needs and requirements of newsprint. The Supreme Court acted as a
perfect saviour of freedom by preventing Government from making repressive laws under the garb
of the newsprint control policy, with this historical Judgement.

o Bennett Coleman & Co. v. U.O.I., (1972) 2 SCC 788

In this case it was held that to require a newspaper to reduce its space for advertisement would
directly affect the circulation since it be bound to raise the price. Such attempt would amount to
unreasonable restriction upon the freedom of expression or which would curtail the circulation and
thereby narrow the scope of dissemination of information or fetter its freedom to choose it means
of exercising the right or would undermine its independence by driving it to seek Government aid.

o LIC v. Manubhai D. Shah, (1992) 3 SCC 637

In Life Insurance Corporation of India v. Manubhai D. Shah, 56 it was held that Article 19(1)(a)
includes the right to propagates one's view and to answer criticism leveled against his view through
print media or electronic media. A study paper alleged that Life Insurance Corporation is charging
unduly high premiums. The LIC published a counter to that allegation in the study paper in its in-
house journal "Yoga Kshema". The trustee, who prepared the study paper wanted a rejoinder to be
published in the in-house journal. But the LIC refused to do so. It was held that refusal to publish
rejoinder to the counter in its magazine is both unfair and unreasonable and that it was an in house
 journals was no excuse. The Supreme Court said that the print media had the duty to publish views
and counter views. If the article written by a person was criticised in a Magazine, that writer had a
right to get his counter to be published in that magazine. In this case, the Supreme Court took up the
appeal from the respondent trustee on different facts on the same point of law, i.e., the scope of
freedom of speech. The trustee challenged the order of Doordarshan refusing to telecast the
documentary film "Beyond Genocide" produced by the trust based on the Bhopal Gas Tragedy. The
documentary was adjudged as the best non-feature film and awarded the Golden Lotus. It was also
declared that all award-winning films would be telecast over Doordarshan. It was held: "A film maker
has a fundamental right under Article 19(1)(a) to exhibit his film, and therefore onus lies on the party
which claims that it was entitled to refuse enforcement of this right by virtue of law made under
Article 19(2) to show that the film did not conform to the requirements of that law." The Supreme
Court said that it was not proper on the part of the Government to refuse to telecast on the ground
that there was a criticism against the Government and a comment that the litigation was pending in
courts for a long time. The Apex Court said that these were not grounds at all. The Supreme Court
rejected the appeals by LIC, and said: "LIC is a state within the meaning of Article 12 and therefore it
must function in the best interest of the community. The Community is entitled to know whether or
not this requirement is complied with by the LIC in its functioning…Freedom to air one's views is the
lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would
sound a death knell to democracy and would help usher in autocracy or dictatorship."

Right to dissent

o Romesh Thappar v. State of Madras, AIR 1950 SC 124

o Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955

Mere criticism of the Government action would not fall within the mischief of public order and the
same would be protected under Article 19(1)(a). The Supreme Court referring to Section 124A of the
IPC held that the activity would be rendered penal when it is intended to create disorder.90 In the
name of security, the Official Secrets Act of 1923 is still imposing severe restrictions on the freedom
of expression. However, the governments in principle accepted to reduce the seriousness of this
colonial legislation and provide for Right to Freedom of Information. The Official Secrets Act poses a
major impediment in the process of providing right to information.

o S. Khushboo v. Kanniammal, (2010) 5 SCC 600

The SC observed that the framers of the Constitution recognized: that is the importance of
safeguarding the freedom of speech and expression since the free flow of opinions and ideas
 is essential to sustain the collective of the citizenry. Also, an informed citizenry is a
precondition for meaningful governance as it promotes the open dialogue between the
government and society.
o Rule of majority is an integral part of democracy but majoritarianism is the antithesis of
democracy.

Right to portray social evil

o Anand Patwardhan, (2006) 8 SCC 433

In this case an independent filmmaker challenged doordarshan’s refusal to telecast his

documentary, giving reason that it contain scenes that could promote violence and it’s
telecast would be against the policies of doordarshan. The court observed that, though there
are some scene of violence and social injustices in the film but because of this it cannot be
said that the filmmaker supports any of that, and this depiction is only meant to convey that
such social evil still exists.

The Bench held that “the freedom of expression, which is legitimate and constitutionally
protected, cannot be held to ransom on a mere fall of a hat” and that “Doordarshan being a
State controlled agency funded by public funds could not have denied access to screen the
Respondent’s documentary except on specified valid grounds.” Observing that Doordarshan
had been “finding flimsy excuses time and again” in “not telecasting the documentary film in
question every time the film was sought to be aired either at the instance of the Respondent or
due to the orders of the Court”, the Bench was of the view that this was “highly irrational”
and “blatant violation of the right guaranteed under Article 19(1)(a) of the Constitution. The
Bench held that Doordarshan was being “dictated by rules of malafides and arbitrariness in
taking decisions with regard to the telecast of the Respondent’s film” and consequently
directed the Doordarshan “to exhibit the entire documentary film of the Respondent within 8
weeks.”
o Mahesh Bhatt v. U.O.I., (2009) 156 DLT 725
The writ petition filed by Mahesh Bhatt challenged the lawfulness of the provisions of the
cigarette and other tobacco products. The Cigarette and Other Tobacco Products (Prohibition
of Advertisement and Regulation of Trade and Commerce, Production, Supply, and
Distribution) Act, 2003 defines the advertisement includes any visible representation by way
of notice, circular, label, wrapper or other document and also includes any announcement
made orally or by means of producing transmitting light, sound, smoke or gas.
 Held:
it was held that advertisements intend to make information and advice open and scatter data
through media and different methods, it was decided that advertisements of tobacco items
can’t as such viewed as indecent. Utilization Consumption of tobacco or smoking is
unfortunate yet isn’t unethical. The term decency is more expansive. Commercial
advertisements are entitled to limited protection under Article 19(1)(a) of the Constitution if
they are in the public interest. Commercial advertisements of tobacco products are not
expressions protected under Article 19(1)(a) of the Constitution. Business ads will
incorporate tobacco items. In any case, business promotions are extraordinary and different
from the news. The reason and object behind news are to disperse data, ideas, and thoughts.
Pre-predominant nature and character of the article, picture, and so forth, will decide if it is a
business ad or a news thing/picture. Therefore, the advertisement comes into a different
approach than of press.
o K.A. Abbas v. U.O.I., (1970) 2 SCC 780

K. A. Abbas v Union of India In K. A. Abbas v Union of India the censorship of films was challenged as
unreasonable restriction over freedom of expression. Supreme Court upheld the censorship of the
films on the ground the films have to be treated differently from other form of art and expression as
the motion picture is able to stir up the emotions more deeply than any other form of art and
censorship of the films on any of the grounds mentioned in Article 19(2) is justified. The Supreme
Court justified the pre-censorship of films under Article 19(2) on the grounds that films have to be
treated separately from other forms of Article and expression because a motion picture was able to
stir up emotions more deeply than any other product of Article. The classification of films between
categories like "A" (for Adults only) and "U" (for all), was held to be valid in K.A.Abbas. v. Union of
India. This position remained unaltered.

o Bobby International v. Om Pal Singh Hoon, (1996) 4 SCC I

Bandit Queen Case

A citizen Om Pal Singh Hoon asked the court to quash the certificate of exhibition given to the film
"Bandit Queen" and to restrain its exhibition in India. The petitioner contended that the depiction of
the life story of Phoolan Devi in this film was "abhorrent and unconscionable and a slur on the
womanhood of India". He also questioned the way and manner in which the rape was brutally
picturised suggesting the moral depravity of the Gujjar community. Delhi High Court held that the
rape scene was obscene and quashed the order of Tribunal granting "A" certificate to the film. The
Supreme Court allowed the appeal and held that issuance of "A" certificate by Tribunal was valid.
The Supreme Court said that the film must be judged in its entirety from the point of overall impact.
Where theme of the film is to condemn degradation, violence and rape on women, scenes of nudity
and rape and use of expletives to advance the message intended by the film by arousing a sense of
revulsion against the perpetrators and pity for the victim is permissible, said the Supreme Court in
Bobby Art International v. Om Pal Singh Hoon case.

Right to advertise : Tata Press Ltd. v. MTNL, (1995) 5 SCC 139

In Tata Press Ltd., Mahanagar Telephone Nigam Ltd, 76 the Supreme Court held that a commercial
advertisement or commercial speech was also a part of the freedom of speech and expression,
which could be restricted only within the limitations of Article 19(2). The Nigam permitted
contractors to publish telephone directories in "yellow pages" and to raise their revenue from
advertisements. These "yellow pages" used to be added to the directory published by the Nigam in
white pages. The Bombay High Court allowed the appeal of the Nigam, which sought a declaration
that it alone had exclusive right to publish the telephone directory and that the Tata press had no
right to publish the list of the telephone subscribers without its permission as it would be violation of
Indian Telegraph Act. The Tata press went in appeal to Supreme Court. Admitting the appeal, the
Court said: "The Advertisement as a "Commercial Speech" has two facts. Advertising which is no
more than a commercial transaction, is nonetheless dissemination of information regarding the
product-advertised. Public at large are benefited by the information made available through the
advertisements. In a democratic economy, free flow of commercial information is indispensable.
There cannot be honest and economical marketing by the public at large without being educated by
the information disseminated through advertisements. The economic system in a democracy would
be handicapped without there being freedom of "Commercial speech". The public at large has a right
to receive the commercial speech. Article 19(1)(a) of the Constitution not only guaranteed freedom
of speech and expression, it also protects the rights of an individual to listen, read and receive the
said speech. Supreme Court emphatically held that the right under Article 19(1)(a) could not be
denied by creating a monopoly in favour of the Government, it could only be restricted on grounds
mentioned in Article 19(2) of the Constitution.

Right to broadcast : Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana,

(1988) 3 SCC 410.

A public interest litigation under Article 226 was filed to restrain the authorities from telecasting the
serial Honi Anhoni on the ground that it was likely to spread false and blind beliefs and superstition
amongst the members of the public. The High Court of Bombay granted a temporary injunction. The
 matter came up before the Supreme Court by special leave under Article 136 of the Constitution.
The Supreme Court held that the order of injunction granted was improper as the respondent has
failed to produce any material apart from his own statements to show that the exhibition of the
serial was prima facie prejudicial to the community as such the issue of order of injunction would
infringe a fundamental right of the producer of the serial.

Morality, Obscenity and Censorship

• Exceptions to freedom of speech and expression- Decency and morality – Art. 19(2).

• S. 292-294 IPC,1860- sale, letting to hire, distribution of obscene material an offence,

punishable with imprisonment and fine.

• The Cinematograph Act, 1952 – s. 5-B, s 4 and 5-A prohibits the certification of a film by
the Censor Board for public exhibition, if the film or any part of it is against the interest of
morality and decency.

• The Dramatic Performances Act, 1876 s. 3(c), s. 6 – empowers the government to prohibit
public dramatic performances on the ground of obscenity and visits the disobedience of a
prohibition with imprisonment.

• The Customs Act, 1962 – s. 11(b)- empowers the government to prohibit or impose
conditions on the import or export of goods in the interest of decency and morality.

• The Post Office Act, 1898 – s. 20 prohibits the transmission, by post, of any material on the
ground of decency or obscenity.

• The Indecent Representation of Women (Prohibition) Act, 1986 – ss. 3-6 prohibits the
indecent representation of women through advertisement or other publications.

• The Young Persons (Harmful Publications) Act, 1956 – ss. 3-7 prohibits publication which
could corrupt a child or young person and incite him to commit crimes of violence or cruelty
etc.

• The IT Act, 2000- the publication and transmission in electronic form of material which is
lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant circumstances, to read, see or
hear the matter contained or embodied in it. S. 67
 Meaning of decency and Morality

• Vague and elastic

• Evolve with time and social change

• Vary between different cultures

• Wide interpretation – not confined to sexual morality

• Shri Chandrakant Kalyandas Kakodkar v. State of Madras & Other, (1969) 2 SCC 687

Indecency and obscenity

• Expressly prohibited by s. 292(1) IPC

• Obscenity – if it is lascivious or appeals to the prurient interest or if it its taken as whole

deprave and corrupt person who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it.

• Obscenity is used to describe expressions that offend prevalent sexual morality

• Indecency is wider than obscenity

• Indecent merely means non-conformance with accepted standards of morality, obscenity

refers to that which is prurient or lascivious

• To be considered obscene requires three elements:

• –the material appeals to prurient interest;

• – the material is “patently offensive” in the community; and

• – the material lacks redeeming social value.

• Obscene refers to material which “the average person applying contemporary standards
would find that, taken as whole, appeals to the prurient interset. ”

Obscenity, Vulgarity, Sex and Nudity

• Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289.

In Samaresh Bose v. Amal Mitra36, the Court was asked to decide that whether the Bengali
novel Prajapati is obscene or not, as the novel depicted sexual encounters and used vulgar
language. The trial court held the matter as being obscene. However, the Supreme Court
disagreeing with the trial court finding observed that:
 …the concept of obscenity is moulded to a great extent by the people who are expected to
read the book. It differs from country to country, depending upon the standards of morality.
Even the outlook of a Judge may differ from another Judge as it is a matter of objective
assessment of the subjective attitude of the Judge hearing the matter.37
The Court further ruled that vulgarity and obscenity need not be confused with each other.

• Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1

• Maqbool Fida Husian v. Raj Kumar Pandey, 2008 Cri LJ 4107 (Del).

Delhi High Court while dealing with the issue of whether a nude painting depicting “Bharat
Mata” can be said to be obscene or not. The court answered this in negative and went on
observing that “nudity and sex alone cannot be said to be obscene.”

• Strict Liability in case of obscenity

Test of Obscenity

• No uniform test – case to case basis

 Hicklin’s Test

 The Likely Audience Test

 Literary merit and prepondering social purpose

 The aversion defence

 Contemporary/national standards

 Judging the work as a whole, Test of the ordinary man

Hicklin test

• The Hicklin test is an obscenity standard that originated in an English case.

• Obscene Publication Act,1857

• In Regina v. Hicklin (1868), Lord Chief Justice Alexander Cockburn

• Whether the tendency of the matter is to deprave and corrupt those whose minds are open to
such immoral influences and into whose hands a publication of this sort may fall.

• Effect of the publication on the most vulnerable members of society.

• Whether or not they were likely to read it or not

• Hicklin allowed portions of a suspect work to be judged independently of context.

• If any portion of a work was deemed obscene, the entire work could be outlawed.

Ranjit D. Udeshi v. State of Maharastra

• Appellant partner of a firm – a book-stall in Bombay- Happy Book Stall

• Prosecuted under s. 292 IPC.

• Book Lady Chatterley’s Lover

• When everything said in its favor we find that in treating with sex the impugned portions
viewed separately and also in the setting of the whole book pass the permissible limits judged
of from our community standards.

• There is no social gain to us which can be said to preponderate.

• The judges had indicated that the concept of obscenity would change with the passage of time
and what might have been obscene at one point of time would not be considered as obscene
at a later period.

• Even though the case is heavily criticized for having curtailed the freedom of speech and
expression, this observation in the case stands out to show how the community standards
mattered even then

• Section 292 of the Indian Penal code requires any material which is in question to be ‘taken
as a whole’. When the material is taken as a whole, if it is lascivious and tends to deprave and
corrupt persons who read, see or hear the matter contained.

• The Hicklin test is in contravention of IPC as the former requires the passages to be seen in
isolation

Bobby Art International v. Om Pal Singh Hoon

• ‘She is humiliated, stripped naked, paraded, made to draw water from the well, within the
circle of a hundred men. The exposure of breasts and genitalia to those men is intended by
those who strip her to demean her.’

• The portrayal of the tragic story of dacoit Phoolan Devi in Bandit Queen fell in a legal battle
when a criminal case of obscenity was filed against the makers.
• The petitioners objected to some scenes depicting nudity and violence in the movie and
claimed that they were obscene, lascivious, and would corrupt and deprave the minds of the
viewers and hence, a criminal act under section 292 of the IPC.

• The scenes depicting nudity must not be seen in isolation. They must be seen in the context or
the background in which they (film, portrait, writing, and photograph) are made.

• The message being conveyed through the portrayal is of utmost importance when deciding
the obscenity of an act. The movie Phoolan Devi depicts the social menace of torture and
violence against a helpless female child which transformed her into a dreaded dacoit.

• The object of the scenes was not to titillate the cinemagoer’s lust but to arouse in him the
sympathy for the victim and disgust for the perpetrators. ‘Nakedness does not always arouse
baser instinct.’

Boris Beckar and Barbara Feltus

• In 1994, German magazine STERN published an article with a picture of Boris Becker, a
world renowned tennis player and his dark-skinned fiancée, German actress Barbara Feltus.

• In the picture, both Becker and Feltus were naked and he had put his arms around her in a
manner to cover her breasts with his palms.

• The article states that, in an interview, both spoke freely about their engagement, their lives
and future plans and the message they wanted to convey to the people at large, for posing to
such a photograph.

• Article picturizes Boris Becker as a strident protester of the pernicious practice of

“apartheid”.

• Further, it was stated that the purpose of the photograph was also to signify that love
champions over hatred.

Aveek Sarkar & Anr. V. State of W.B. & Ors.

• The article along with the photograph was published in an Indian magazine “Sports World”

• Title : “Posing nude dropping out of tournaments, battling racism in Germany. Boris Becker
explains his recent approach to life- Boris Becker unmasked”

• A Kolkata based newspaper Anandabazar Patrika.

• Aveek Sarkar, a lawyer filed a case under section 292 of IPC against the editor, publisher
and printer of the newspaper

• The editor of the magazine alleging the photograph will corrupt and deprave the minds of the
young and were against the cultural and moral values of society.

• Also stated that unless such type of obscene photographs are censured and banned and
accused persons are punished, the dignity and honor of our womanhood would be in
jeopardy.

• He further alleged that both the publishing houses had published the photograph particularly
with the intent of increasing sales.

• The acceptable level of obscenity in films, photographs, paintings, and stories and novels, is
not yet settled in India.

• In terms of section 292 of the IPC, any matter is obscene if taken as a whole, it is lascivious
or appeals to the prurient interest or if its effect and tends to deprave and corrupt persons who
read, see or hear the matter contained or embodied in it.

• The terms ‘obscene’ or ‘obscenity’ have not been defined in IPC, which makes the
application of community standards test more suitable to India.

• The community standards test is more adaptive to any changing society. One cannot miss the
myriad changes in the continuously emerging Indian society.

• If the society accepts the portrayal of sexual activities on the silver screen, the court must not
strike it down for the sake of a few sensitive persons.

• If it is acceptable to the society in general, the court must accept it too.

• Needs to look into the bigger picture, the message being conveyed through the otherwise
obscene material. The message should be beneficial and helpful to the society.

• People should have the freedom to send a message to the society through
images/films/paintings/writings which if seen in isolation would be considered obscene or
lascivious.

• In a case of Aveek Sarkar & another Vs. State of West Bengal, Supreme Court recently passed a
judgment stating, "Nude picture of women is not obscene if it carries social message", that is a
picture of a nude/semi-nude women, as such, cannot per se be called obscene unless it has the
 tendency to arouse feeling or revealing an overt sexual desire. The judgment passed is indisputable
but many advertisements published in newspapers, magazine related to contraceptives involve
picture of semi-nude women models posing in seductive gestures, soliciting and luring people to try
their products. The pictures depicted in such advertisements are undeniably vulgar and designed to
excite sexual passion in persons who are likely to see it and the defense taken by the media for
publishing such contents is that it's an effort to spread social awareness. Such advertisements are
meant only for a particular group of audience and certainly not meant for children and adolescent
and by publishing such content in newspapers or magazines it is bound to create a sudden shock or
feeling of lustful thoughts in the audience's mind. Particularly for newspapers which are pursued by
almost every age group, there has to be certain restrictions on publication of such content to
maintain public decency.

Felix M.A. v. Gangadharan

• Kerala HC -

• Antony Dominic, C.J. And Dama Seshadri Naidu,

• The petitioner contended that the over page offended sections 3(c) and 5(j), III of the
Protection of Children from Sexual Offences Act and Rules, as well as section 45 of the
Juvenile Justice Act.

• He has also roped in sections 3 and 4 of the Indecent Representation of Women Act.

• What may be obscene to some may be artistic to other; one man’s vulgarity is other man’s
lyric

The Likely Audience Test

• Most vulnerable person test now not applicable

• Impact on those who can gain access

• Targeted audience –class not an isolated case

• Chandrakant Kalyandas Kakodhar case

• Ajay Goswami – Adult cannot be deprived of entertainment within acceptable norms of

decency

• Channel Zoning
 Literary Merit Test

• Art, literary or social merit and obscenity – artistic work outweighs obscenity

• Medical Science

• The requirement of art and literature include within themselves a comprehensive view of
social life.

• Anand Patwardhan Case :

1. Whether the average person, applying contemporary community standards would find that
the work, taken as a whole, appeals to the prurient interest;

2. Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law;

3. Whether the work, taken as a whole, lacks serious literary artistic, political or scientific value.

M.F. Hussain – Bharatmata

• Dr. Shashi Tharoor – Freedom of Literature Bill , 2018

• Rehana Fathima's case - the video was created with the intention of spreading proper
awareness about sexuality and narrow-minded views on obscenity.

• She stated that the video was made and uploaded with the intention of spreading a message to
"normalize the female form of body for her children and to not allow distorted ideas of
sexualization pervade their minds".

"Not interested in this kind of a case. How can you make use of children for this? What kind
of a culture will the children perceive?” – J. Arun Mishra

The Aversion Defence

• Nudity and sexual explicitness do not by themselves constitute obscenity.

• Sometimes depiction of nudity not to arose sexual desire but to arouse horror and revulsion.

• Aversion Defence –UK

• Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846.

• Judging the work as whole- s. 5 B, Cinematograph Act, 1952

• Anand Patwardhan Case

• Test of the Ordinary Man – Not out of the ordinary or hypersensitive man

• K.A. Abbas Case- Average Person Test

Sum-up

• Vague – not defined.

• The acceptable level of obscenity in cinemas, photographs, paintings and literature is still not
settled in India, and there is still more to be talked about.

• Community standard – National or local.

• The material must be utterly obscene without redeeming social value.

• Difficult to get a conviction for obscenity.

• Sexual and vulgar contents are no more unethical or unaccepted social feature, rather such
contents represent the present trend.

• Justice for Rights Foundation v. Union of India, 2019

 Fake NEWS

Fake news- meaning

Term ‘fake news’ has a straightforward or commonly- understood meaning

‘News’ means verifiable information in the public interest, and information that does not
meet these standards does not deserve the label of news.

‘Fake news’ is an oxymoron which lends itself to undermining the credibility of information
which does indeed meet the threshold of verifiability and public interest – i.e Real news.

Misinformation/ disinformation

Disinformation is generally used to refer to deliberate (often orchestrated) attempts to confuse

or manipulate people through delivering dishonest information to them. This is often
combined with parallel and intersecting communications strategies and a suite of other tactics
like hacking or compromising of persons

Misinformation is generally used to refer to misleading information created or disseminated

without manipulative or malicious intent.

Both are problems for society, but disinformation is particularly dangerous because it is
frequently organized, well resourced, and reinforced by automated technology.

The purveyors of disinformation prey on the vulnerability or partisan potential of recipients

whom they hope to enlist as amplifiers and multipliers.

A particular danger is that ‘fake news’ in this sense is usually free – meaning that people who
cannot afford to pay for quality journalism, or who lack access to independent public service
news media, are especially vulnerable to both disinformation and misinformation.

Disinformation and misinformation are both different to (quality) journalism which complies
with professional standards and ethics. At the same time they are also different to cases of
weak journalism that falls short of its own promise.

The spread of disinformation and misinformation is made possible largely through social
networks and social messaging

Self-regulation
In 2018, the UN special rapporteur on freedom of expression and opinion focused his annual
report on the issue, urging the internet companies to learn from self-regulation in the news
media, and to better align with UN standards on the right to impart, seek and receive
information.

Weak Journalism- Dis or Misinformation

Disinformation and misinformation are both different to (quality) journalism which complies
with professional standards and ethics.

At the same time, they are also different to cases of weak journalism that falls short of its
own promise.

Poor research or sloppy verification.

Poor quality journalism sometimes allows disinformation and misinformation to originate in

or leak into the real news system.

Need to recognize that while the major arena of disinformation is social media, powerful
actors today are instrumentalizing ‘fake news’ concerns to clamp down on the genuine news
media.

People are then likely to take as credible whatever content is endorsed by their social
networks, and which corresponds with their hearts – but leaves out engagement with their
heads.

This impact on the public is also especially concerning for elections, and to the very idea of
democracy as a human right.

Need for strong journalism

Journalism faces the risk of being drowned out by the cacophony;

Journalists risk being manipulated by actors who go beyond the ethics of public relations by
attempting to mislead or corrupt journalists into spreading disinformation;

Journalists as communicators who work in the service of truth, including “inconvenient

truths”, can find themselves becoming a target of lies, rumors and hoaxes designed to
intimidate and discredit them and their journalism, especially when their work threatens to
expose those who are commissioning or committing disinformation.

What journalism needs to do

Time for news media to tack more closely to professional standards and ethics

To eschew the publishing of unchecked information, and

To take a distance from information which may interest some of the public but which is not
in the public interest.

All news institutions, and journalists whatever their political leanings, should avoid
inadvertently and uncritically spreading disinformation and misinformation.

The ability of news practitioners to go beyond “he said, she said” journalism, and to
investigate the veracity of claims made by those being covered has to be improved.

Professor Charlie Beckett from the London school of economics sums up as the potential
value of the ‘fake news’ crisis for journalism:

“...Fake news is the best thing that has happened for decades. It gives mainstream quality
journalism the opportunity to show that it has value based on expertise, ethics, engagement
and experience. It is a wake-up call to be more transparent, relevant, and to add value to
people’s lives. It can develop a new business model of fact-checking, myth-busting and
generally getting its act together as a better alternative to fakery.”

Fake News in India

Widespread sharing of false rumors on whatsapp has led to a wave of violence in India, with
people forwarding on fake messages about child abductors to friends and family out of a
sense of duty to protect loved ones and communities," said the report.

BBC research has revealed that fake news is fast spreading in India owing to a "rising tide of
nationalism" where right-wing networks are much more organized than on the left, pushing
"nationalistic fake stories" further.

The research found that in India, "facts were less important to some than the emotional desire
to bolster national identity".

The NBSA had earlier asked Aajtak to pay a fine of Rs. 1 lakh and had asked the broadcaster
to air an apology admitting on national television that it did not conduct the due diligence
required prior to telecasting the tweets. The media network had telecast fake tweets
attributing to late actor Sushant Singh Rajput and had passed off them as his last tweets.

Fake news about the Tablighi Jamaat and communalizing the Nizamuddin Markaz incident.
Spokesperson for the western theatre command that oversees defences of #china’s border
with India has released the names of 30 Chinese troops killed by Indian action.

Tweets by Amit Malviya

Law relating Fake News in India

Section 66D of Information Technology Act- “Whoever, by means for any communication
device or computer resources cheats by personating shall be punished with the imprisonment
of either description for a term which may extend to three years and shall also be liable to
fine which may extend to one lakh rupees”.

Section 54 of the Disaster Management Act- “Whoever makes or circulates a false alarm or
warning as to disaster or its severity or magnitude, leading to panic shall be punished with the
imprisonment which may extend to one year or with fine”.

Section 505(1) of Indian Penal Code, 1860- “whoever by making, publishing or circulating
any statement, rumor or report which may cause fear for an alarm to the public, or to any
section of the public shall be punished with imprisonment which may extend to three years,
or with fine or with both”.

Section 153 of Indian Penal Code- “Whoever malignantly, or wantonly, by doing anything
illegal, gives provocation to any person intending or knowing it to be likely that such
provocation will cause the offense of rioting to be committed, shall, if the offense of rioting
be committed in consequence of such provocation be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with both; and if the
offense of rioting be not committed, with imprisonment of either description for a term which
may extend to six months, or with fine, or with both”.

Section 499 and 500 of Indian Penal Code- “ whoever, by words either spoken or intended
to be read, or by signs or by visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person is said, except in the case hereinafter
expected, to defame that person” and “whoever defames another shall be punished with
simple imprisonment for a term which may extend to two years, or with fine or with both”.

PCI and NBA

As Professor Emily Bell of the tow center for digital journalism at Columbia University has
explained, core professional journalism values are about:

“making sure news is accurate, being accountable for it if it is not accurate, being
transparent about the source of stories and information, standing up to governments,
pressure groups, commercial interests, the police, if they intimidate, threaten or censor you.
Protecting your sources against arrest and disclosure. Knowing when you have a strong
enough public interest defence to break the law and being prepared to go to jail to defend
your story and sources. Knowing when it is unethical to publish something. Balancing
individual rights to privacy with the broader right of the public interest.”

----------------------------------------------------------------------------------------------------------------

PAID NEWS
As rightly quoted by Abraham Lincoln, the democracy means rule of the people by the
people and for the people. In the democratic setup it is the people who elect their candidate
and that elected candidate joins the governing process on behalf of the people. It is therefore
very important that the people should select the candidate with utmost care and caution, as
their future will be in his or her hands for a considerable period.
Media plays a very important role in shaping the minds of the people. The media virtually
controls the minds of the people. People tend to believe what the media says. It plays a vital
role in forming the opinion of the people. Media can be the voice of the people. In Nirbhaya
case, it was the strong protest of the media which forced the authorities to take strong action
against the authorities who initially were reluctant to even file an FIR. Earlier in
Priyadarshini Matoo case it was because of media’s pressure the accused, who had been scot
free in trial court was convicted. Media is therefore regarded as a powerful tool in
democracy. It is also regarded as a watch dog of democracy.
Even the great freedom fighters had realised and acknowledged the strength of media. Mr.
Pandit Jawaharlal Nehru, the first Prime Minister of India had said that “I would rather have a
completely free press with all the dangers involved in the wrong use of that freedom than a
suppressed or regulated press.”
Since the power of media is immense, it has a crucial role to play in a democratic setup,
especially in country like India. The media has to empower the citizens with unbiased
information. It shall impartially bring out the merits and demerits of the government actions.
The media shall fearlessly bring out corrupt practises, if any done by any of the candidates, so
that people will not vote for him and the others will be deterred not to be involved in any of
corrupt practises. It shall also organize debates on issues of public importance so that the
people will be in a position understand different angles and of the problems.
It is now no secret that the journalism which was a noble profession at one time is now only
limited to money making business. It is now giving more significance to TRPs and monetary
benefits than serving the interest of the people. This policy of the media gives rise to evils
like media trial, sensitization, paid news, etc.
Concept of Paid News
Paid news means publishing any favourable content to any one or publishing any content
which will cause prejudice to someone, for the benefit of some other one, at the instance of
the latter for exchange of money or other favours. Such publications are generally disguised
as news but are not the news. The Press Council of India defines the concept of paid news as
‘as any news or analysis appearing in print or electronic media for consideration in cash or
kind’. A paid is an advertisement which is disguised as news to make reader or viewer
believes that it is a news when actually it is not.
The phenomenon of “paid news” has acquired serious dimensions. Today it goes beyond the
corruption of individual journalists and media companies and has become pervasive,
structured and highly organized. In the process, it is undermining democracy in India. This
has anguished the leading sections of the society, including political leaders, thinkers,
journalists and media owners. They all have expressed their unhappiness and concern about
the pernicious influence of such malpractices.
The phenomenon of “political paid news” became particularly noticeable during the 2009
general elections and thereafter during the elections to the assemblies of various states. The
phenomenon acquired a new and even more destructive dimension by redefining political
“news” or “reporting” on candidates standing for election – many such “news reports” would
be published or broadcast perhaps only after financial transactions had taken place, almost
always in a clandestine manner. It is widely believed that many media companies,
irrespective of the volume of their businesses and their profitability, were “selling” news
space after arriving at an “understanding” with politicians and representatives of corporate
entities that were advertisers. Space in publications and airtime were occupied by
advertisements that were disguised as “news”.
Paid news is a Phenomenon where the media is engaged in publishing either favorable or
unfavorable news, with an intention to favor a particular entity for payment. The press
council defines paid news as any news or analysis appearing in print or electronic media for
consideration in cash or kind. Paid news is always undermines the democratic spirits as it
misleads the public and making them form an incorrect opinion. It also causes undue
influence on voters, who are supposed to be the real rulers in any democratic country. It helps
the candidate to spend extra on election campaign, as the amount paid to media to get a
favorable coverage is not calculated in the election expenses made by that candidate, who
pays media for a favorable coverage. News has to be neutral, unbiased and fair. News shall
provide true and accurate report, while advertisement on other hand is not fair. It is made to
promote a person or promote some article or someone. Advertising is a means of
communication with the users of a product or service. Advertisements are messages paid for
by those who send them and are intended to inform or influence people who receive them, as
defined by the Advertising Association of the UK.
Causes of Paid News
1. Lack of clear distinction between editorial section and management.
The primary cause for erosion of independence is journalism is contract system employment.
Because of this the status of journalist was reduced to marketing agents. Actually the press
council is in favour of a clear distinction between management and editorial staff.
2. Journalists and reporters are under paid.
The journalists and reporters are underpaid. Most of the media personnel gets a very less
wages. Many journalists or reporters work on commissions or on contract basis. They are
mostly bringing advertise, and eventually working as market representatives rather than
journalists standards.
3. Cross Media Holdings
There are no limitations on ownership of the media segments, which could give rise for
monopolistic practices.
Proposal of Election Commission in Respect of Paid News
The Commission has proposed to the Ministry of Law & Justice, Govt. of India for the
amendment in the Representation of the People Act, 1951, to provide therein that publishing
and abetting the publishing of `Paid News’ for furthering the prospect of election of any
candidate or for prejudicially affecting the prospect of election of any candidate be made an
electoral offence under chapter-III of Part-VII of Representation of the People Act, 1951 with
punishment of a minimum of two years imprisonment. The issue is pending with the Govt. of
India.
 Media Trial
Open Justice System
 Justice must not only be done but seen to be done.
 Openness and publicity are the sine qua non of the right to a fair trial under Art. 21.
 Under trial is entitled to a trail which is open, speedy and fair.
 Primary beneficiary of openness and publicity is the person being tried.
 Safeguard against judicial error and misconduct.
 The freedom of expression exercised by the media applies “with equal force to the
freedom of the press to report criminal trails in progress and after verdict.”
The Criminal Procedure Code, 1973
 S. 327. Court to be open – The place in which any Criminal Court is held for the
purpose of inquiring into or trying any offence shall be deemed to be an open Court,
to which the public generally may have access, so far as the same can conveniently
contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of
any inquiry into, or trial of, any particular case, that the public generally, or any particular
person, shall not have access to, or be or remain in, the room or building used by the Court.
 The SC has recognized that the purpose of the open justice rule is to ensure that the
accused is fairly tried and not unjustly condemned.
 People can see that State machinery are not misused.
 Enhances the public knowledge and appreciation of the working of the law and
administration.
 Edmonton Journal v. Alberta (Attorney General), (1989) 2 SCR 1326
The educative effect of public attendance is a material advantage. Not only is respect for
the law increased and intelligent acquaintance acquired with the methods of government, but
a strong confidence in judicial remedies is secured which could never be inspired by a system
of secrecy.
 Retain faith in justice system.
 The publicity of court cases enable the ordinary citizens to be informed about matter
of the public interest.
Attorney General of Nova Scotia v. MacIntyre, (1982) 1 SCR 175
 Mohd. Shahabuddin v. State of Bihar (2010) 4 SCC 653
 Witnesses are discouraged from committing perjury by the presence of members of
the public who may be aware of the truth.
  Witness like other participants may be encouraged to perform more conscientiously
by the presence of the public, thus improving the overall quality of testimony.
 Unknown witnesses may be inducted to come forward and testify if they learn of the
proceedings through publicity.
Exceptions to the Open Justice Rule
 Indian Penal Code, 1860- s. 228 A
 The Indian Divorce Act, 1869 – s. 53
 Special Marriage Act, 1954 – s. 33
 Hindu Marriage Act, 1955 – s. 22
 Official Secrets Act, 1923 – s. 14
 Contempt of Courts Act, 1971 – s. 4
 Cr.PC- s. 327
Media Trial
 A media ‘trial’ happens when the media starts conducting parallel proceedings, and
asserting its view as the correct view, over those statutorily entrusted with the task of
investigation or adjudication. Reporting leaked information in ongoing
investigations.
 Media has now reincarnated itself into a ‘public court’ (Janta Adalat) and has started
interfering into court proceedings.
 The trial by media is definitely an undue interference in the process of justice
delivery.
 Is the difference between a legitimate comment and an unwarranted trial by media so
vexed a question that it must repeatedly find its way to courts of law?
 How then does the danger of a media trial play out, and what manner of restriction
could prevent that?
Cases
 Bijal Joshi Rape case
Sajal Sureshkumar Jain v. State of Gujarat
Bijal Joshi a victim of rape committed suicide on Jan 7, 2004. The media cover this incidence as
failure of justice because accused are misusing the legal machinery. Subsequently The
NCW(National Commission for Women) conduct an independent inquiry and pointed out there
were lapses in the investigation. The media’s role was significant at this stage because it
prevented the accused from misusing the legal machinery.
 Priyadarshni Matto Case
Priyadarshini Mattoo Case: Justice Delayed Not Denied Courtesy: Media
In this case Priyadarshini Mattoo, a law student was raped and murdered by Santosh Kumar,
son of an Senior IPS served as the Joint Commissioner of Police in Delhi. In the absence of strong
evidence Sessions court acquitted Santosh by giving him the benefit of doubt. Media criticized
this verdict. Intense media coverage on prime time by various news channels and newspapers
was creating a strong pressure on the Government and its investigating agency as a result CBI
submitted a fresh appeal in the Delhi High Court against the verdict of the District Court. The
hearing of the case was taken upon daily basis and finally the Delhi High Court pronounced
Santosh Kumar Singh guilty.
 Jessica Lal Case
 'Miscarriage Of Justice' in the Jessica Lal Murder Case
Jessica lal a struggling model working part time in restaurant was killed by a strong congress
leader son named Manu Sharma on April 29, 1999. All The witness becomes hostile. This was
resulted in acquittal of all accused and case was closed. Media, raise a voice against this decision
and on public opinion, this case was reopened. All the accused were punished. Later on Tehelka,
a news magazine revealed in his sting operation that the father of Manu Sharma had bribed the
witnesses hefty amounts of money in order to turn hostile in the court.
 Nitish Katara Media's efforts lauded again honour killing
Nitish Katara, a 25-year-old business executive in Delhi , was murdered Vikas Yadav, the son of
influential criminalpolitician D.P.Yadav. He was murdered because he was in love with Bharti
Yadav, sister of Vikas, the family did not approve their relationship. The trial court held that his
murder was a case of honour killing . As accused father was on influential position all the
witness, turn hostile. Media obtain the testimony Bharti Yadav in London . On the basis of Vikas
along with other accused were later found guilty by the trial Court and awarded life sentence on
30 May 2008. Media's role again proved worthwhile in an accused meeting the desired fate who
could have made narrow escape from judicial imprudence and shoddy investigation.
 Aarushi Talwar case Over enthusiastic media lost its grammar
 The high-profile Arushi/Hemraj twin murder case is a classic example where media's effort
was lauded as well as criticized. Sensational or scandalous reporting of the case force the
Supreme Court to interfere in the media coverage passed a restraining order and the media
was barred from any Sensational news coverage of the murders case with Justice Altamas
Kabir saying, "No one wants to gag the press. But someone can gag an irresponsible media
reporting. We are asking the press not to sensationalise something which affects
reputations." The manner in which electronic media and print media of the cover this case
 ignited intense debate as to where should media draw a line of model conduct self
regulation.
 Sushant Singh Rajput case
Sushant Singh Rajput case is undoubtedly the biggest media trial in the history of Indian
Broadcast media. As it was continuously covered for ---- days. The case got global
attention and media coverage. It sets a kind of curious, offbeat and outlandish wave of
conspiracy theories which was completely played out and telecasted on Indian News
channels, social media websites, newspapers and also in the world politics. Immediately
after the incident the news channels held together in the ‘Live Streaming’ hour by hour,
day by day, week by week without providing any break and also forgetting the
prominence of other important issues that had to be covered. These days, the TV anchors
who have been transformed to studio psychiatrists on the spur of the moment are taking
great agony to explode the probability and chances that Sushant Singh Rajput may have
had depression. The ensuing events that played out in the media have thrown a wide
debate on the role of the press, especially the 24x7 news channels in cases under
investigation and unresolved trial before the court.
The Bombay High Court has ruled that the media trial in the death case of Sushant Singh
Rajput was contemptuous. While passing a verdict in a bunch of petitions filed against
media trials in the wake of reportage relating to the death of Bollywood actor Sushant
Singh Rajput, the bench of Bombay High Court Chief Justice Dipankar Datta and Justice
GS Kulkarni said, "Trial by media obstructs the fair probe in a criminal case. The regime
of self-regulation by the media has no sanctity.” The court also held that the trial by
media in case of Rajput's death hindered the administration of justice and criticism of the
Mumbai Police was done by a few news channels which the court held was
contemptuous.
 Siddhartha Vashisht@Manu Sahrma v. Stae NCT of Delhi
 The essential difference is captured by the terms used in the Sidharth Vashisht
judgment, “informative expression” and “trial by media”. Where the people are
informed of news and views, it is a legitimate expression that cannot be restrained,
however unpalatable it may be to some.
 the media either frontally or suggestively pronounces on the merits of a controversy at
large in a court (often called the sub judice rule), it enters the province of courts. In
criminal trials, if the media declares or builds public opinion on the guilt or
 innocence, it jeopardises the presumption of innocence, a right as important as free
speech. Hence it is “trial” by the media, that it is neither competent nor permitted to
hold.
 Harper Collins Publishers PVT Ltd v Sanchita Gupta @ shilpi and others-
Gunning for the Godman: The True Story Behind Asaram’s Conviction.
 Media Trial in SSR case: Journalist have lost their neutrality.
 R.K. Anand v. Delhi HC, (2009) 8 SCC 106.
Trial By Media Is Contempt Of Court
 The Contempt of Court Act defines contempt by identifying it as civil and criminal.
Criminal contempt has further been divided into three types:
 # Scandalizing
 # Prejudicing trial, and
 # Hindering the administration of justice.
Trial by Media: International Perspective
A string of high-profile cases, sensationalised by the media, have focused the debate between
freedom of speech and expression as claimed by the media, and the right of fair trial as
proclaimed by the judiciary. It began in 1807, in the United States of America with the case
of Aron Burr1; subsequently, it erupted in England; it has finally reached the shores of India.
Since the controversy is of a new vintage in India, the Indian judiciary finds itself at a
crossroad. Similar to the difficulties faced by the American and the English judiciary, the task
before the Indian judiciary is to balance the competing fundamental rights of the media and
of the accused. Since we can learn from the American and the English experience, in this
article, I propose to first examine the American and the English position on this controversy,
then deal with the response in India, both from within and without the judiciary, and lastly to
discuss the options before the judiciary and the media.
The judiciary and the media share a common bond and play a complimentary role to each
other: man is the centre of their universe. While the media explores, discovers, and reveals
the achievements and follies of man, the judiciary deals with the legal problems created by
him. Both the judiciary and the media are engaged in the same task: to discover the truth, to
uphold the democratic values and to deal with social, political and economic problems. The
media, in fact, has been called the handmaiden of justice, the watchdog of society; the
judiciary, the dispenser of justice and the catalyst for social reforms. Thus, both are essential
for the progress of a civil society.
However, at times, these two pillars of democracy are at loggerheads. Under the fundamental
right of freedom of speech and expression, the media claims the right to investigate, to reveal,
to expose and to highlight the criminal cases. According to it, in a democracy the people have
the right to know. Therefore, the media has a corresponding duty to inform the people about
the criminal and the crime. It, thus, demands the right to carry on pre-trial publicity. Yet, on
the other hand, the judiciary is keenly aware of the fundamental rights of the accused to a fair
trial and of due process of law. Since pre-trial publicity can derail a fair and a speedy trial, the
judiciary has to balance the competing fundamental rights. While the freedom of speech and
expression of the media, the right to know of the people need to be protected and promoted,
the right to fair trial of the accused needs to be secured and guaranteed.
Pre-trial publicity is injurious to the health of a fair trial. Even before the accused is arrested
and tried, the cacophony of media proclaims the accused to be guilty. It may project
irrelevant and inadmissible evidence as the gospel truth, thereby convincing the people about
the guilt of the accused. It, thus, undermines the fundamental principle of common law that
every man is presumed to be innocent till proven guilty. Once the accused is portrayed as a
despicably depraved character, at times, the Bar may refuse to defend him. It, therefore, robs
the accused of his fundamental right to defend himself. Such publicity also convinces the
witnesses to custom-tailor their testimony to the prosecution case. Most importantly, the
appreciation of the evidence by the public and the judiciary may differ. While the people are
convinced of the guilt of the accused, the court, after meticulous examination of the evidence
may acquit him. Such differences in perception weaken the faith of the public in the criminal
justice system. Ultimately, pre-trial publicity undermines the criminal justice system and
overturns the rule of law.
However, in a democracy, the right of free press and right of fair trial must peacefully co-
exist. The United States of America, England and India are the torchbearers of democracy.
We are progenies of the common law. We, thus, share a common political ideology, a
common legal heritage. Our Constitutions, whether written or unwritten, proclaim, protect
and promote the same set of fundamental rights: both the First Amendment of the American
Constitution and Article 19(1)(a) of the Indian Constitution guarantee the freedom of speech
and expression. The Fifth Amendment of the American Constitution protects the right to life,
liberty and property; Article 21 of our Constitution, likewise, protects life and personal
liberty. While the former speaks of due process of law, the latter requires procedure
established by Similarly, the Sixth Amendment of the American Constitution ensures the
right to a speedy and public trial, by an impartial jury. Although we do not have trial by jury,
but Article 21 of our Constitution also ensures the same right of fair trial. Though England
has an unwritten Constitution, but it, too, subscribes to the identical inalienable rights.
Therefore, the three countries share a common denominator of this perpetual confrontation
between the freedoms of speech versus fair trial.
The American Supreme Court and the Circuit Courts, which are akin to our High Court as
they, too, are superior appellate courts have taken an ambivalent position on this controversy.
Caught between the two warring fundamental rights, the American Supreme Court began
with protecting the rights of the accused, but slowly shifted to protecting the rights of the
media. But in the process, it laid down certain tests for dealing with the effects of pre-trial
publicity and prescribed certain remedies for dealing with such adverse effects. These tests
and remedies could be useful to us as well.
In Rideau v. Louisiana, the American Supreme Court laid down the test of presumed
prejudice. The case involved the robbery of a bank, the kidnapping of three of the bank
employees, and murder of one of them. An interview of the accused, Rideau was telecasted
for three days, wherein he was shown with the Sheriff in the jail, confessing to his guilt.
Rideau’s counsel requested for change in the venue of the trial on the ground that the
interview so telecasted had adversely affected his right to a fair trial. The trial court had
denied the prayer. The Supreme Court said: Our Constitutions guarantee of due process, a
person accused of committing a crime is vouchsafed basic minimal rights. Among these are
the right to counsel, the right to plead not guilty, and the right to be tried in a courtroom
presided over by a Judge. Yet in this case the people of Calcasieu Parish saw and heard, not
once but three times, a trial of Rideau in a jail, presided over by a sheriff, where there was no
lawyer to advise Rideau of his right to stand mute.
In this case, the Court presumed the prejudice caused by the broadcasting of the interview.
In Sheppard v. Maxwell the Supreme Court of United States was asked to consider whether
Sheppard was deprived of a fair trial in his state conviction for the second-degree murder of
his wife because of the trial judge’s failure to protect Sheppard sufficiently from the massive,
pervasive and prejudicial publicity that attended his prosecution.
Speaking for the Court, Clark, J. concluded that Sheppard did not receive a fair trial
consistent with the due process clause of the Fourteenth Amendment and, therefore, reverse
the judgment. The Court laid down the test of reasonable likelihood of prejudicial news prior
to the trial preventing a fair trial. If such reasonable likelihood exists, then the conviction
should be overturned. The Court, hence, shifted from the test of presumed prejudice to the
test of reasonable likelihood.
In Murphy v. Florida the Supreme Court was seized of the issue, whether the petitioner
[Murphy] was denied a fair trial because members of the jury had learned from news
accounts
about a prior felony conviction or certain facts about the crime with which he was charged.
Speaking through Marshall, J. the Court observed that Juror exposure to information about a
State defendant’s prior convictions or to news accounts of the crime with which he is charged
do not alone presumptively deprive defendant of due process; such exposure must be viewed
with the totality of the circumstances to determine whether the trial was fundamentally unfair.
It, thus, laid down the test of totality of circumstances in order to determine whether the pre-
trial publicity had adversely affected the fairness of the trial or not.
Moreover, in Moyola v. Alabama the Court opined that one seeking to have his conviction
nullified on the ground that he was denied a fair trial by an impartial jury due to adverse pre-
trial publicity ordinarily must demonstrate an actual, identifiable prejudice attributable to that
publicity on the part of members of his jury. Hence, the accused has to prove that the
newspaper coverage so saturated and tainted the county populace that any subsequent
proceedings in that
county would have been unavoidably poisoned by it. One can, thus, see the changing stand of
the Supreme Court of United States from presumed prejudice to reasonable likelihood to
totality of circumstances and of the Circuit demanding that the accused should demonstrate
an actual, identifiable prejudice attributable to that publicity.
The American courts have created different yardsticks, as they are sceptical about the adverse
impact of pre-trial publicity on a trial. The American courts have gone on to believe that light
impressions carried by the Jury would yield to the testimony presented at the trial. Hence,
pre-trial publicity does not adversely affect a fair trial. Therefore, the press should be given a
free hand to cover the crime and the trial.
However, in Bridges v. California the American Supreme Court did note that, legal trials are
not like elections, to be won through the use of the meeting-hall, the radio, and the
newspaper. Moreover, in Maxwell, the Court prescribed certain methods for controlling the
pre-trial publicity:
(i) Control the presence of the press at the judicial proceedings.
(ii) The court should have insulated the witnesses. This implies protecting and isolating the
witnesses during the trial.
(iii) The court should make efforts to control the release of leads, information, and gossip to
the press by police officers, witnesses, and the counsel for both sides. More specifically, the
trial court might well have proscribed extrajudicial statements by any lawyer, party, witness,
or court official which divulged prejudicial matter.
(iv) Reporters who wrote or broadcast prejudicial stories could have been warned as to the
impropriety of publishing material not introduced in the proceedings.
(v) Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a
fair trial, the judge should continue the case until the threat abates, or transfer it to another
county not so permeated with publicity.
(vi) If publicity during the proceedings threatens the fairness of the trial, a new trial should be
ordered. But the Court warned, But we must remember that reversals are but palliatives; the
cure lies in those remedial measures that will prevent the prejudice at its inception. But
despite the existence of these methods to control pre-trial publicity, the American courts, by
and large, have been reluctant to utilise this methodology. As far as the American courts are
concerned the freedom of speech and expression takes precedence over the right of fair trial.
While the American courts have favoured the press over the accused, the British courts have
thought vice versa. Laws, J. in R. v. Lord Chancellor, ex p Witham observed, Indeed, the
right to a fair trial is as near to an absolute right as any which I can envisage. The English
courts recognise the potential threat to justice posed by unrestrained publicity. Certain
information, especially reports of confessions made by criminal defendants and details of
defendants prior convictions, is considered inherently prejudicial. Courts tend to halt
prosecutions when detrimental publicity interferes with criminal trials. If the rules of
evidence preclude the production of particular facts during trial, and members of the jury are
exposed to those same facts, British courts simply assume that justice has been compromised.
(Ref. to R. v. Evening Standard Co. Ltd.)
Thus, the English courts have followed the test of presumed prejudice to hold that pre-trial
publicity has violated the right to fair trial. In Attorney General v. Guardian Newspapers Ltd.
Collins, J. observed that in assessing whether there has been a violation, courts must
determine whether the risk of prejudice from the publication is both immediate and serious.
The courts must consider the nature of the published material and its presentation, the timing
of the publication, the likelihood of its coming to the attention of jurors or potential jurors,
the likely impact on the jury and the ability of the jury to abide by any judicial directions
which seek to neutralise any prejudice.
In order to ensure fair trial, the English have restricted the flow of information. Under the
Contempt of Court Act, 1981, the English courts have the power to prevent or punish conduct
which tends to obstruct, prejudice or abuse the administration of justice.
While the American and the English courts have grappled with this problem, the Indian
courts have gingerly touched the issue. The reason is not far to seek: trial by media is a recent
phenomenon. Hence, we find sporadic obiter, but no concrete ratio decidendi. In Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay (P) Ltd., the
Hon’ble Supreme Court partly dealt with the issue of freedom of press and administration of
justice. Dealing with an adverse article published in the Indian Express with regard to the
public issues of Reliance Petrochemicals, the Supreme Court had restrained all the six
respondents from publishing any article, comment, report or editorial in any of the issues of
the Indian Express or their related publications questioning the legality or validity of any of
the consents,
approvals or permissions to the [said issue of debentures]. The issue raised was about the
continuation of such injunction especially when the shares had been oversubscribed though
the day of allotment had not yet expired and before the allotment the subscribers could
withdraw their subscriptions. The Apex Court held: There must be reasonable ground to
believe that the danger apprehended in continuance of the injunction is real and imminent.
This test is acceptable on the basis of balance of convenience.
However, the Supreme Court has not yet found or laid down any formula or test to determine
how the balance of convenience in a situation of this type, or how the real and imminent
danger should be judged in case of prevention by injunction of publication of an article in a
pending matter. But the Court did caution that public interest demands that there should be no
interference with judicial process and the effect of the judicial decision should not be pre-
empted or circumvented by public agitation or publications.
In State of Maharashtra v. Rajendra Jawanmal Gandhi, while dealing with a case of alleged
attempt to rape a minor, the Apex Court observed: A trial by press, electronic media or pubic
agitation is the very antithesis of the rule of law. It can well lead to miscarriage of justice. A
Judge has to guard himself against any such pressure and he is to be guided strictly by the
rules
of law.
In M.P. Lohia v. State of W.B., the Hon’ble Supreme Court dealt with a case where a trial for
dowry death was sub judice, when an article appeared in a magazine Saga, entitled Doomed
by Dowry. The article was based on the interview, of the family of the deceased, giving
version of the tragedy and extensively quoting the father of the deceased as to his version of
the case. The Apex Court observed: we have no hesitation that these type of articles
appearing in the media would certainly interfere with the administration of justice. We
deprecate this practice and caution the publisher, editor and the journalist who were
responsible for the said article against indulging in such trial by media when the issue is sub
judice. However, the Court treated the matter as closed instead of pursuing this matter any
further.
Recently, in Manu Sharma v. State (NCT of Delhi), the Apex Court has extensively observed
about the danger of trial by media. It opined as under: There is danger of serious risk of
prejudice if the media exercises an unrestricted and unregulated freedom such that it
publishes photographs of the suspects or the accused before the identification parades are
constituted or if the media publishes statements which out rightly hold the suspect or the
accused guilty even before such an order has been passed by the court.
Despite the significance of the print and electronic media in the present day, it is not only
desirable but the least that is expected of the persons at the helm of affairs in the field, to
ensure that trial by media does not hamper fair investigation by the investigating agency and
more importantly does not prejudice the right of defence of the accused in any manner
whatsoever. It will amount to travesty of justice if either of this causes impediments in the
accepted judicious and fair investigation and trial.
It further held: Presumption of innocence of an accused is a legal presumption and should not
be destroyed at the very threshold through the process of media trial and that too when the
investigation is pending. In that event, it [would] be opposed to the very basic rule of law and
would impinge upon the protection granted to an accused under Article 21 of the
Constitution. [Anukul Chandra Pradhan v. Union of India] It is essential for the maintenance
of dignity of the courts and is one of the cardinal principles of the rule of law in a free
democratic country, that the criticism or even the reporting particularly, in sub judice matters
must be subjected to check and balances so as not to interfere with the administration of
justice.
The Indian judiciary has not dealt substantially with the issue of freedom of press versus the
right to fair trial. But this issue has taxed the imagination of the media, both the world over
and in India. In 1994, thirty-nine distinguished legal experts and media representatives met
for three days in Madrid. One of the basic principles, enunciated in the Madrid Principles on
the Relationship Between the Media and Judicial Independence, is that: It is the function and
right of the media to gather and convey information to the public and to comment on the
administration of justice, including cases before, during and after trial, without violating the
presumption of innocence.
Thus, even the Madrid Principles do place a limit on the media not to violate the presumption
of innocence.
Similarly, in India, the Press Council of India has prescribed The Norms of Journalistic
Conduct. Norm 1 states:
1. Accuracy and fairness. (i) The press shall eschew publication of inaccurate, baseless,
graceless, misleading or distorted material. All sides of the core issue or subject should be
reported. Unjustified rumours and surmises should not be set forth as facts.
While dealing with investigative journalism, Norm 26(f) states:
26. (f) The reporter must not approach the matter or the issue under investigation, in a manner
as though he were the prosecutor or counsel for the prosecution. The reporters approach
should be fair, accurate and balanced. All facts properly checked up, both for and against the
core issues, should be distinctly and separately stated, free from any onesided inferences or
unfair comments. The tone and tenor of the report and its language should be sober, decent
and dignified, and not needlessly offensive, barbed, derisive or castigatory, particularly while
commenting on the version of the person whose alleged activity or misconduct is being
investigated. Nor should the investigative reporter conduct the proceedings and pronounce his
verdict of guilt or innocence against the person whose alleged criminal acts and conduct were
investigated, in a manner as if he were a court trying the accused.
Norm 26(g) unequivocally states:
26. (g) In all proceedings including the investigation, presentation and publication of the
report, the investigative journalist/newspaper should be guided by the paramount principle of
criminal jurisprudence, that a person is innocent unless the offence alleged against him is
proved beyond doubt by independent, reliable evidence.
The Press Council has further prescribed the cautions to be observed while criticising judicial
acts. Norm 12(a) states as under:
12. (a) Caution in criticising judicial acts. (i) Except where the court sits in-camera or directs
otherwise, it is open to a newspaper to report pending judicial proceedings, in a fair, accurate
and reasonable manner. But it shall not publish anything which, in its direct and immediate
effect, creates a substantial risk of obstructing, impeding or prejudicing seriously the due
administration of justice; or is in the nature of a running commentary or debate, or records the
papers own findings, conjectures, reflection or comments on issues, sub judice and which
may amount to abrogation to the newspaper the functions of the court; or regarding the
personal character of the accused standing trial on a charge of committing a crime.
(ii) Newspaper shall not as a matter of caution, publish or comment on evidence collected as
a result of investigative journalism, when, after the accused is arrested and charged, the court
becomes seized of the case. Nor should they reveal, comment upon or evaluate a confession
allegedly made by the accused.
In case these norms are followed in letter and spirit, the controversy between freedom of the
press and the right of accused of fair trial would itself subside. However, these norms have
been followed more in breach than in adherence.
The consequences of the media overstepping these norms are not too far to imagine. Already
the 17th Law Commission has suo motu taken up the topic of Trial by Media: Free Speech
and Fair Trial under Criminal Procedure Code, 1973.
In its 200th Report, the Law Commission has opined that today there is a feeling that in view
of the extensive use of the television and cable services, the whole pattern of publication of
news has changed and several such publications are likely to have a prejudicial impact on the
suspects, accused, witnesses and even Judges and in general on the administration of justice.
It said that publications which interfered or tend to interfere with the administration of justice
would amount to criminal contempt under the Contempt of Courts Act, 1971. It further
suggested that if in order to preclude such interference, the provisions of the Contempt of
Courts Act were to impose reasonable restrictions on freedom of speech, such restrictions
would be valid. Since Section 3(2) of the Contempt of Court Act claims that a criminal
proceeding is said to be pending, where it relates to the commission of an offence, when the
charge-sheet or challan is filed, the Law Commission has suggested this part of the section be
amended to lay down that the criminal proceeding is said to begin from the moment of arrest
of the offender. It has further suggested that publications with reference to character of the
accused, previous convictions, confessions, judging the guilt or the innocence of the accused
or discrediting witnesses could also be considered as criminal contempt. It further suggested
that the power to restrain the press from publishing or broadcasting or telecasting adverse
reports about a criminal case should be given to the High Courts. Although the said Report
has not been accepted by Parliament, but the recommendation of the Report are possible
pointers to the future scenario involving the freedom of the press.
In a nascent democracy like ours, the judiciary and the press have a pivotal and a crucial role
to play. Both have to uphold the constitutional philosophy and the rule of law. The judiciary
and the press have to supplement and not supplant each other. While the people have a right
to be informed, the individual has the right to be protected and defended in a criminal case.
Although it is said that the right of an individual should give way to the right of the
community, but in criminal justice system, it is the right of the accused, which is paramount.
His presumption of innocence cannot be sacrificed at the altar of freedom of speech and
expression. To do so, would be to turn the entire criminal justice system on its head; it would
violate Article 21 of Constitution of India, which is the heart and soul of our Constitution. If
the rule of law is to be protected and promoted, administration of justice has to be given
preference over the freedom of speech and expression as enjoyed by the press.
GENDER REPRESENTATION IN MEDIA
Media Role
 Awakening of people
 Giving information
 Large population- reaching approx every house – all medium
 Views felt and formed
 Fourth Pillar of democracy – promoter and guardian
 News channels very important – During election – not provide their views
 Expanding dimension of media- Print, social, electronic- lot of information not only
news
Benefits
 Media Highlight the women issues / weaker sections
 Promoter of women issues / weaker sections
 Empower women
 Article/data /events they publish
 Movies and adds – changing the notion
 Government program promoted – Beti Bachao, Beti Padhao
 Sati, Domestic Violence, Dowry
 Judgements – media publishes
Why to Study gender in relation of media?
• Socialization » Learning » Strong impact on mind
Impact of Media
 Positive and negative
 Impact of women oriented programme, serials, add, social media, play station,
cartoons
 They distract and make weak- depression
  Violence, negative practice
Accountability of Media
 Representation can influence the general public’s perception of the d/f genders
 Advertisements and pictures in magazines carry significant message about social and
cultural norms
 Gender relations for both men and women
 Changing gender relations & feminist ideas influence representation
 Increasing presence of not only female body but also the eroticized male body
Media and Women
 How women are segregated – Drama, Movies, adds
 More than brain - beauty ,notion of body is very significant
 Commodification of women – market/profit
 Festivals – additional burden on them for traditions and rituals
 Women image- stupid – shopping, cooking, looking after kids, men
 Media perpetuating stereotypes and creating normalized gender behaviors
 Weal, dependent, not empowered, quarrelsome, moody, poor, no managerial
capability – Sita, Mahabharat, mother India- sacrificing soul
 Now concept of super women – not normal women
 Difference between women in Constitution and women in Society
Theory of Male Gaze
 Laura Mulvey : The image of women (passive) raw material for the active gaze of
man
 Images are created so as to be viewed by only male eyes – though audience both
 Forms of the gaze
 The spectator gaze
 The intra- diegetic gaze
 The extra-diegetic gaze/ Camera gaze
 Editors Gaze
Idea of beauty has two functions
 Naomi Wolf
 Social Function :‘Beauty’ disciplines women
 Economic Function : ’Beauty’ as commodity
The Bechdel Test
 Alison Bechdel – The Rule- 1985
  The Rule which became a basic measure to see if women are fairly represented in a
film
 it’s is also referred to as the Bechdel-Wallace test Alison credited the idea for the test
to her friend Liz Wallace
 For a film to pass The Bechdel Test, the movie must simply have the following:
 It must have at least two female characters
 They must both have names
 They must talk to each other about something other than a man
 The test is not a measure of how good or ‘feminist’ a film is but it does highlight just
how male-dominated cinema really is.
 It gives us something to think and do something about.
 Representing women in a positive and progressive light.
Kabir Singh, Gully Boy, URI , House Full , Super 30
WOMEN AND MEDIA - Justice G.N. Ray
The most significant and longest social movement continuing is movement for emancipation
of women. Though the primary goal for women empowerment is to improve the quality of
life of women but it has also deep ramifications in social, economic and political scenario of
body polity. The media through its reach to people at large has been instrumental though not
to the extent desired in supporting the movement for women emancipation by focusing
neglect and marginalization of the position of the women in society.
Women are under great social control and scrutiny which has restricted what they can say and
where and to whom. Cultural moves in almost every social set-up determine women’s
socialization in no uncertain terms. This has an important bearing on their ability to
communicate and express their thoughts.
Gender Inequality
A vast majority of Indian women work through out their lives but the fact is that it is not
officially recognized. Statistics on work force shows low figure of women workers. There is a
serious underestimation of women’s contribution as workers even though when given a
chance they have convincingly proved their ability. Women’s workforce participation – the
percentage of adult women who are actually working is accepted indicator of women’s status
and component of the Gender Empowerment Measure (GEM) used in GNDP Human
Development Reports. According to a survey conducted by NCW covering over 1200 women
in both organized and unorganized sector it has been found that 50% experienced gender
discrimination by way of physical and mental harassment of women at work.
The survey reported discrimination not only in salary but also in promotions, work
distribution and working hours. Promoting gender equality was identified by the Government
as priority strategic goal for the UN System in India under UN Development Assistance
Framework. We should not forget that Gender Equality is not just a women’s issue. It is an
issue for the nation.
Wage discrimination
Women generally earn a far lower wage than men doing the same work. In no state in India
women and men earn equal wage in agriculture. This is equally applicable to other areas of
works such as mining, trade, transport services etc. In the various work sectors average wages
earned by male is more than the wages earned by female. The media can certainly bring some
of these biases in to light. Specially, women journalists must take up this cause. The Indian
constitution makes it mandatory to give equal protection to every citizen. Thus sympathetic
media, judiciary and executive should stand for this together. Reform movement too is
necessary in this regard.
Crime against women
The soaring crime rates and violence against women in the country reflects women as weaker
sex who are being dominated and exploited. They face violence inside and outside the family
throughout their lives. The Crime Record Bureau of India’s website shows that in the year
2006 total crime reported against women was 1, 91731. Police record shows that a woman is
molested in the country every 20 minutes; a rape occurs every 34 minutes and every 43
minutes an incident of sexual harassment takes place. Every 43 minutes a woman is
kidnapped and every 93 minutes, a woman is killed.
Media’s Role in empowerment of women in India
Communication is extremely important for women’s development and mass media play
significant role. It is to be noted that growth of women’s education and their entry into
employment have contributed to the growth of media. In all spheres of life whether for
controlling population growth, spread of literacy or improving quality of life for vast masses,
women have crucial role to play. However, women can be expected to play this role when
they become conscious of their strength and are not deliberately marginalised by male
domination. In this context, media has an important role to play – to create awakening in
women to achieve their potential as the prime movers of change in society. In today’s world,
print and electronic media play a vital role in effectively conveying message that needs to be
conveyed.
Portrayal of women by the Media
By and large the media scene in India is that media does not address serious issues about
exploitation and inequal treatment to women in different spheres but is keen in reporting sex
related incidents by way of sensationalizing news of atrocities on women. Thus instead of
highlighting the exploitation of woman they end up becoming one of the reasons in increase
of violence as their coverage more often than not tend to glorify the crime against women. It
is true that media has brought to light, as never before, certain misdemeanours against women
but in a very subtle manner it also perpetuated the stereotyped image of woman as a
householder and an inconsequential entity in the traditional value system. Generally,
women’s problems never figure on the front page of a newspaper unless it is a gruesome
murder or a case of rape. Newspapers even on women’s page does not usually address
relevant issues for women empowerment but reporting is concerned with beauty tips recipes,
fashion syndrome etc.
It is unfortunate that there is lack of sensitivity among the newspapers in general to women
and their problems. I would like to refer to the Study conducted by the Media Advocacy
Group viz. “Violence against Women: Media Coverage and Representation”. The Media
Advocacy Group made the following recommendations on reporting violence against the
women.
(i) Media needs to take an extended, broader view of crimes against women. It has to be
instrumental in conducting a social audit on factors responsible for increasing crimes,
particularly against women and children, including indifferent investigative procedures,
miscarriage of justice, and growing social impunity of the perpetrators of crime.
(ii) It also has to be instrumental in creating an awareness among civil society of the causes
and nature of the crime itself, and of the preventive measures.
(iii) When treating these issues, media has to be extremely factual and empirical.
The study also stated that the only regulation that governs a sensitive reporting on this issue is
that the rape victim’s name should not be disclosed. Barring this, the study found that
everything else is graphically reported. Often the victim’s family name and address is cited,
making a mockery in the letter and spirit of the regulation. Though much of this violation and
malpractice are committed by a small group of publications, others are spurred on to imitate
and keep pace with the sensational trend.
Aarushi murder case is another prime example of irresponsible and sensational reporting by
the Media. The gruesome murder of a teenage girl for days have been the sound basis of
increased TRPs of the News Channels. The media both electronic and print are morally and
legally bound to avoid sensationalisation of news relating to victims of crimes. The Press
Council of India had already drawn guidelines on the subject and appeals to media to follow
them meticulously while reporting atrocities on women/child.
An important issue that greatly and gravely impacts women in overt as well as covert manner,
the HIV/AIDS reportage by the media. The Press Council had focused on the issue way back
in 1993 when the AIDS was treated as an incurable ‘epidemic’ and anyone who contacted it
was pariah. The prime sufferers of such ostracization were the women, being treated as an
important cause and carrier of the so-called desease.
Much water has flown down the ganges, since then and with medical advances, it has become
necessary for the media to focus on the issue with not just a proactive but positive approach.
Therefore, the Press Council has in consultation with the UNDP and the activists of the field
redrawn the guidelines for media reportage that find place in the souvenir that is to be shortly
released.
Limited coverage in Media
Newspapers cover women’s problems drawing the attention of policymakers to issues
requiring immediate attention such as the adverse sex ratio, infant and maternal mortality,
crime against women and the effects of poverty on women and their families. But this
coverage is very limited with the rest of the space occupied by cinema actresses, models,
video jockeys
(veejays) and the rich women and their hobbies. Many of the women’s magazines are
devoted to fashion, glamour, beauty aids, weight reduction, cookery and how to sharpen
‘feminine instincts’ to keep men and their inlaws happy. There are comparatively fewer
articles on career opportunities, health awareness, entrepreneurship, legal aid, counseling
services, childcareservices and financial management. A study in this regard was conducted
in Jharkhand, Chattisgarh, Uttaranchal, Uttar Pradesh and Jammu and Kashmir.
Two regional newspapers and two English newspapers were selected for the study. Prominent
newspapers only publish 5% of women related issues and 8% are published on main page and
remaining are placed inside. Study showed no importance is given to development issues of
women. In the television serials women are the central characters, but they are portrayed
largely as tormentors or the victims while the men very often take sideline and just seem
caught in a web of unfavourable circumstances. Television culture has portrayed a breed of
weak, indecisive men ensnared by sexy women when in reality men also play an active role
in oppressing women in various ways including subjecting them to physical assault, rape,
pushing
them into the sex trade and even abandoning them. It is only desirable that serials should be
close to reality and give message to the viewers where and how the society is going wrong.
This portrayal of women in media has led the National Commission for Women to
recommend amendment in the Indecent Representation of Women (Prohibition Act), 1986.
The NCW wants to include new technologies like MMS and the electronic media and some
which were left out side the ambit of the Act like posters and TV serials which perpetuate
stereotypes of women. Explaining the reason for including soaps in proposed amendment in
the Act, National Commission for Women has stated that “women are either being portrayed
as Sita (Ramayana) or as Kaikayee (Ramayana) and there seems to be nothing in between the
two extreme characters being shown in Soaps. Divorces, adultery are highlighted frequently
in Soaps where characters break the law without repercussion.”
Negative images or just portraying reality is not enough. Infact, it can often be harmful. It has
been observed that sheer duplication of the dark side of life can often lead to apathy and
passivity. This can be avoided by depicting the positive images or success stories of women
in whatever sphere they happen.
There is need to produce programmes that talk about income generating schemes for women.
Unfortunately, in these kinds of ventures typical “womanly jobs” like papad-making, sewing,
embroidery, pickles making etc. are propagated. Stress should be given on non-traditional
skills which can break the myth that women are suited to certain kinds of jobs only. A
systematic survey of the existing schemes (Government/non- Government) and presentation
of the analysis and changes needed to upgrade the schemes which would make them more
purposeful is essential.
The distance between women and media not only deprives the women of their right to
information and knowledge but also keeps the women in the dark regarding the blatant
misuse of the female and the distortion of the truth. Although the images of women as
reflected by the different mass media in the country are not very different, it will be an
interesting exercise to study how these images feed and reinforce the stereotypes.
The distortion of realities by the media has increased the gap of understanding between the
different sections of society. Effective informative communication is one of the most
important channels for the growth and development of women in the informal or unorganized
sector, as without information regarding services and benefits available through legislation,
government schemes, banks and voluntary organizations, women can hardly take advantage
of them. Thus the media should take into consideration the following points.
 (i) The media must project the working women in the unorganized sector as worker
and not merely as performing the duties of wife/daughter. They being major
earners, they must be projected as producers and not merely consumers.
(ii) The media should make deliberate attempts to not only project the problems of
women in poverty, but should monitor in such a way that conflicting role models
are not depicted, nor derogatory references to their work are made.
(iii) To improve content and coverage, coordinated efforts for increased interaction
between NGO’s, women’s social action group, research organizations, institutes
of mass communication, and the media personnel should be developed.
There are quite a few Reports findings on the complex issues relating to women
empowerment. Very often the media come up with study on women related subjects which
more often than not are driven by market forces. One study claims that women prefer men
with hybrid cars while another says women are genetically devised to shop. Then there is a
study which says women are more attracted to bad boy types. This reveals that women have
become new research subject mostly in less significant areas. In fact, research is necessary to
understand women in its potentiality to usher in a new era. It is difficult to distinguish
between genuine research and studies that are gimmicks more so when news reports do not
identify where these studies are coming from. A large proportion of the research findings
published in major news outlets today is sensationally packaged to draw attention. This is
where the media must step in to help readers to know relevant facts concerning women
empowerment. It will be only appropriate if in the interests of full disclosure, they should
make clear in their reports who was funding the study and which scientific journal published
it. This information can help readers to decide for themselves which pieces of research are
closer to the truth and which are not. Various studies were undertaken on the women and
media to ascertain how the media portrays women and how the women related issues are
presented, how much significance is given to them. Such study has revealed that issues
pertaining to development of women are never emphasized adequately. Women are portrayed
not for feminine beauty and artistic portrayal but for infusing sex appeal more often than not
entering the arena of obscenity. It is necessary to have dispassionate in-depth study by social
activists and media to ascertain why obscenity has risen so much in media. Unless there is
any change in the social perception of women, it will be difficult to curtail obscenity in
media.
Women Journalist in Media
In such a rapidly changing environment, women in media have a large responsibility in not
only changing attitude towards women but also shaping public opinion. With women holding
responsible position in newspapers or electronic media, their competency should extend to a
wider area and a range of issues. More importantly, a woman journalist is expected to show
more sensitivity to issues relating to women and to more meaningful insights and
perspectives.
Like most professions, in the media too, women have struck out boldly, beating a path, which
is both impressive and inspiring. The last five years have seen them pouring out into the
mainstream, acquiring hitherto unattainable positions and proving their mettle, be it the print
or the television media. In short, women have become indispensable in the field. Women’s
organizations and media groups must play an active role in promoting this change. It is
heartening that a wide variety of women’s media initiatives are making a positive impact.
Women have been latecomers in media profession owing to social, religious taboos which
operated as social sanctions. The employment of women in media assumes crucial
importance at this juncture of our economic development. Beside Independent Public
Corporation of Media (DD&AIR), the private owners of TV channels with ownership of
Terrestrial outlets and satellite up linking facilities in country itself have flourished. This has
brought a boom in employment thereby increasing the percentage of women media
professionals.
The rough estimates however show that although the number of women in both the media has
increased in absolute terms, their ratio to men has more or less remained static. A deliberate
policy for ensuring adequate representation of women both in the public and private sectors
of the media is therefore a must, not only for giving women a source of livelihood but also to
ensure their adequate and effective representation, and to make the media truly national and
representative in character.
A significant number of women journalists are very successful in magazines dealing with
various problems of women and child. With sensitivity and skill for analyzing events in
depth, issues such as women abuse and exploitation, harassment of women at workplace and
the trauma of HIV infected women, female infanticide in rural areas find a prominent place in
such magazines. The magazines deal with the issues more in depth compared to newspapers
and women are considered competent to handle such stories. As per a study in the NCR there
are around 900 women journalists and even in cities like Chennai the number is impressive
200. Journalism is no more a male domain. This new trend has also led to a change in the
portrayal of women in the media in general and newspaper in particular. It will not be out of
context to mention here the success of ‘Khabar Lahariya’. A group of eight women belonging
to backward class bring out this paper from the Bundelkhand region. This paper which is
being funded by an NGO was started with an aim to encourage women to fight for their own
rights. Such kind of initiative are required in every nook and corner of our country, so as to
empower the women at grass root level.
The risks women in the media face, both in the urban and rural areas, have also to be
seriously considered. As we move down, from the metropolitan towns and the state capitals,
the risks increase. At the district and taluk levels, from where the bulk of the print media is
published, and which are more news-worthy places for the local and regional news contents,
there is more conservation, more rigid social outlook and greater resistance to social change
and new trends. In these areas women join new professions like journalism sparingly. In
remoter rural areas a woman journalist and particularly a reporter is a novelty not easily
accepted and assimilated in the social milieu. The result is media women have to work almost
in isolation particularly at the ground levels, if they are at all employed. The cases of sexual
assault and harassment of women reporters are very often reported. Women in such cases
have to take a calculated risk in joining the profession. Odd hours of job make the women
journalists vulnerable. Recent murder of Ms. Soumya Vishwanathan, Producer of News TV
channel in Delhi shows women journalist workers are more exposed to the risk of physical
assault, even their life.
It is noticed that more and more young graduates are joining the journalism degree and
diploma courses, with an ambition to make a mark in the profession, and quite a good
proportion of them are girls. With the rapid expansion, almost a proliferation of the electronic
media through satellite channels, with the popularity of the FM on the radio and with the
growth of the print media, notwithstanding the electronic media, now there is a good scope
for absorption of both men and women qualified journalists in various media outlets. Women,
young and old, are prepared to weather the risks. The society, therefore, must make
arrangements to provide adequate security to the vulnerable section of women in the media to
promote their participation at all levels.
I find extremely appropriate here to refer to the recommendations made by the Joshi
Committee regarding positive portrayal of women on Doordarshan. But these
recommendations are equally relevant to all form of media. These recommendations, if
followed in letter and spirit would certainly go in long way in enhancement of women’s
empowerment and facilitate drastic reduction in cultural biases as well as gender biases. They
are
1. The women’s issue one of the utmost significance to the country as a whole and there is
need for a widespread understanding that the nation cannot progress, as long as women are
left behind as the lesser half of society. Therefore, the improvement of women’s conditions,
status and image must be defined to be a major objective for media channels.
2. The Government must at the earliest formulate clear guidelines regarding the positive
portrayal of women on television. This portrayal must take note of women in all facts of their
lives: as workers and significant contributions to family survival and the national economy: it
must further endeavour to integrate women on terms of equality in all sectors of national life
and the development process. These guidelines must emphasis that the “women’s dimension”
must from an integral part of all programmes and not be merely confined to Women’s
Programmes, nor to isolated attempts to discuss women’s issues.
3. The number of commercial formula films screened must be drastically reduced, the cheap
song-and-dance sequence totally eliminated and the content of such programmes carefully
scrutinized in terms of their portrayal of women.
4. Women must not be portrayed in stereotyped images that emphasis passive, submissive
qualities and encourage them to play a subordinate secondary role in the family and society.
Both men and women should be portrayed in ways that encourage mutual respect and a spirit
of give and take between the sexes.
5. The foreign exchange resource should be spent on importing worthwhile educative
programmes, particularly those that show the roles, lives and struggles of women in
neighbouring and other Third World countries so that a greater understanding and a shared
perspective on problems is built.
6. It is necessary to ensure that a large number of rural women gain access to TV. Therefore,
in the placement of community TV sets preference should be given to the meeting place of
Mandals; Mahila Mandals should also be involved in the community viewing arrangement.”
Everywhere the media has the potential to make a far greater contribution to the advancement
of women. They can create self-regulatory mechanisms that can help to eliminate misleading
and improper gender based programming.
Media, which wields immense power in a democracy - a power which is only expanding and
not diminishing, needs carrying out a focused attention about women- related issues and the
portrayal of women. It is, perhaps, necessary that the stabilizing force of women must be
brought home to the Indian people. In every family and society, there is an ethical and
spiritual
space, which has been traditionally dominated by women. The principal character in Bernard
Shaw’s Pygmalion bemoans, ‘why can’t woman be like man!’ The media can play a salutary
and a liberating role to give to the women the distinctive and the exclusive space, which must
belong to them to enable them to generate the ethical and moralizing impulses for the entire
society.